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Compatibility of democracy and learner discipline in South African schoolsMarius SmitBCom LLB LLM NGOS PhDAssociate Professor, School of Education, Northwest University

OPSOMMINGVersoenbaarheid van Demokrasie en Leerderdissipline in Suid-Afrikaanse

Skole

As gevolg van die afskaffing van lyfstraf voel baie onderwysers magteloos omernstige leerder wangedrag by skole effektiewelik te hanteer. Nogtans bevatdie Skolewet kenmerke van verteenwoordigende- en deelnemende demo-krasie en is gegrond op die beginsels van aanspreeklikheid, deursigtigheid enbillikheid. Demokrasie beteken nie anargie of wetteloosheid nie, maarimpliseer die behoud van ’n ordelike en gedissiplineerde skoolomgewing opgrond van die oppergesag van die reg. Uit die regspraak is dit duidelik dat diehowe deurgaans die behoud van dissipline en respek vir gesag handhaaf,veral in gevalle van kwetsende vrye uitdrukkings en ernstige leerder-wangedrag. Fundamentele regte is ’n voorvereiste en grondwetlike elementvan demokrasie. Elke skool is ’n mikrokosmos van die samelewing endemokratiese praktyke, soos die handhawing van dissipline en die skeppingvan ’n menseregtekultuur, is in ooreenstemming met die daarstelling vansubstantiewe demokrasie.

1 Introduction

Since 1994, post-Apartheid South Africa has ventured on the exciting butchallenging road of transforming this society to a fully fledgeddemocracy. Section 7(1) of the Constitution of the Republic of SouthAfrica, 1996 (the Constitution) provides that the “Bill of Rights is acornerstone of democracy in South Africa”. In other words, the mostimportant building block for establishing democracy in South Africa isthe advancement and protection of the fundamental rights as enshrinedin the Bill of Rights. Woolman and Fleisch1 assert that the values ofhuman dignity, equality and freedom enumerated in section 7(1) of theConstitution are species of a generic value: democracy. This importantinsight underscores the fact that the condition of democracy, and not thevalue of human dignity, is foundational to the establishment of a matureconstitutional democracy in South Africa. Fundamental rights do notstand in opposition to democracy, but are constitutive elements ofdemocracy. In other words, without the rights to equality, dignity, life,personal safety, belief, privacy, expression, assembly, association,voting, political party membership, citizenship, access to information,access to courts, language and culture, safe environment, children’srights, education, and just administrative action, there will be no

1 Woolman & Fleisch The Constitution in the classroom – Law and Education inSouth Africa 1994-2008 (2009) 174.

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meaningful democracy in South Africa. These rights are themselves thepreconditions for an open and democratic society.2

In present-day South Africa it is not uncommon for educators atschools to be confronted by learners that assertively stand up for theirhuman rights. Such conviction and confidence in the importance andusefulness of human rights in schools and daily life should be welcomedbecause it points to the establishment and growth of a democratic culturebased on respect for human rights. On the other hand, it often occurs thathuman rights are exaggerated or misconstrued to serve an inappropriatepurpose or to obtain a questionable entitlement. Perhaps this isunderstandable, though not excusable, in view of the fact that SouthAfrica is a fledgling democracy where the content knowledge,fundamental understanding and experience of human rights are stilldeveloping. Rossouw and De Waal3 found, in an empirical study, thatmany students exaggerate their rights, yet they neglect their concomitantobligations, which causes conflict and discipline problems in schools.

Educators feel disempowered in the human rights environmentbecause one of the traditional measures to maintain order and discipline,corporal punishment, has been abolished.4 The Constitutional Court heldin the matter of Christian Education that corporal punishment is a formof cruel and degrading punishment that violates a person’s humandignity and thus infringes section 12(1)(e) of the Constitution.5 Sachs Jexplained the reason for the prohibition of corporal punishment atschools as follows: “It had a principled and symbolic function, manifestlyintended to promote respect for the dignity and physical and emotionalintegrity of all children”.

Over the past fifteen years some of the effects of this general ban oncorporal punishment in schools have become apparent. Learnerdiscipline has become a serious problem in South African schools.6 As aresult, many educators blame the parlous state of poor discipline in manyschools on the fact that educators no longer have an effective deterrentas a form of punishment. The majority of educators (58%) favour thereinstatement of corporal punishment in schools and many admit to thecontinued use of corporal punishment to instill discipline in schools.7

Wolhuter and Van Staden8 established that 85 percent of teachers are of

2 Ibid.3 Rossouw & De Waal (2003).4 S 10 SASA prohibits corporal punishment by anyone at a school.5 Christian Education South Africa v Minister of Education [2000] JOL 7320

(CC). S 10 SASA prohibits corporal punishment by anyone at a school.6 Wolhuter, Oosthuizen & Van Staden “Skoolfase/Leerderouderdom as Faktor

in Leerderdissipline in Suid-Afrikaanse Skole” 2010 T vir ChristelikeWetenskap 169-186.

7 South African Human Rights Commission (SAHRC) Report on school-basedviolence (2008) 1.

8 Wolhuter & Van Staden “Bestaan daar ’n dissipline krisis binne Suid-Afrikaanse skole? Belewenis van opvoeders” 2008 T vir Geesteswetenskappe395.

Compatibility of democracy and learner discipline in SA schools 347

the view that learner discipline problems make them unhappy in theirwork, and 79 percent have, because of learner discipline problems, attimes considered to abandon the teaching profession.

Furthermore, a study by the South African Human Rights Commissionin 2008 about school-based violence confirmed many media reports andcomplaints from educators that violence in many South African schoolshas reached alarming proportions.9 Although serious misconduct onlyoccurs intermittently, school-based violence in South Africa is a multi-dimensional phenomenon and depends on the context in which it arises.Bullying, gender-based violence, discrimination and violence, sexualviolence and harassment, physical violence and psychological violence,describe some of the most prevalent forms that were identified by theHuman Rights Commission. The strike in 2010 by members of thelargest teachers union, the South African Democratic Teachers’ Union,was characterised by intimidation, violence, vandalism, and generalunlawful conduct by the teachers. School violence can lead to seriousconsequences that include suicide, limited concentration span,numeracy and literacy learning problems, poor performance in class,high absentee and dropout rates, being unmotivated in class and ingeneral, loss of desire to succeed in life.10 Schools that experience formsof violence cannot be regarded as democratic institutions where learnerslearn to live co-operatively for the common good.

As it happens, despite the Christian Education decision, manyeducators ignore the judgment and still illegally apply corporalpunishment at schools with the approval of parents.11 Morrell found thatcorporal punishment is still applied in South African schools despite itsillegality and suggests that the general decline in discipline in SouthAfrican schools is the most important reason for the phenomenon ofcontinued use of corporal punishment.12 The Human Rights Commissionreported that corporal punishment is still applied in more than half of theschools (51.4%), with the Eastern Cape (65.3%), Mpumalanga (64.1%)and Limpopo (55.7%) reporting the highest incidences.13 In view hereofthe question arises whether the transition to democracy and theestablishment of a human rights culture is at all compatible with orderand discipline in schools

The aim of this article is to consider the compatibility of democracy(which incorporates human rights) with the maintenance of order anddiscipline in schools. The main contention of this article is that schoolsshould and can be democratic where order and discipline is upheld witha shared concern for the common good. This article will develop this

9 SAHRC 1.10 SAHRC 12.11 Maree “Hitting the Headlines – The Veil on Corporal Punishment in South

Africa Lifted” 2004 Acta Criminologica 72-85.12 Morrell “Corporal punishment in South African schools: a neglected

explanation for its persistence” SA J of Ed 292-299.13 SAHRC 11.

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contention by discussing the following: (1) the concept of democracy ineducation; (2) the legislation and case law that determine democracy inschools; and (3) methods to uphold democracy as well as learnerdiscipline in schools.

2 Conceptualising Democracy in the Education Context

The concept “democracy” can be used in the primary restricted sensethat refers to political rights (eg voting, regular elections, party politicalassociation and state power) or the term can be used in an extendedsense that signifies a condition of society that places value on theresolution of problems of communal life through collective participationin societal institutions and deliberation that is characterised by a sharedconcern for the common good.14 In this extended sense, the concept“democracy” includes the protection of basic human rights. Yet, schoolsmust under no circumstances be politicised and the purpose of educationis certainly not to practise party politics or to promote sectarian politicalinterests at schools. Democracy in schools is not a continuous strugglefor party political power, but should be a condition of a society that placesvalue on the resolution of problems of communal life through collectivedeliberation and a shared concern for the common good.15

The term “democracy” is commonly invoked by people of quitedifferent political or ideological persuasions and carries with it strongemotional and moral force.16 Democracy is by its very nature a dynamicconcept continually changing and developing according to everyparticular society’s historical context and social complexities andtherefore no definition can include all the variations to satisfy theproponents of each theory of democracy. Briefly, the main theories andmodels of democracy that have developed since the Enlightenment arerepresentative (or indirect) democracy in terms of the republican theory,liberal democratic theory, elitist theory and social democratic theory. Inaddition, the models of democracy that have emerged in the modern agesince the 1960s are participatory and deliberative democracy.17 Thesetheories have been discussed copiously elsewhere and in the interest ofparsimony it will not be considered in further detail. The theoretical andphilosophical models of education systems of different societies are

14 Dewey Democracy and education: an introduction to the philosophy ofeducation (1966) 378.

15 Ibid.16 Boomer Democracy, Bureaucracy and the Classroom. (In: Democracy and

Bureaucracy: Tensions in Public Schooling (1990) 115; Myburgh “Ideologicalbattle over meaning of democracy” 2004 Focus available at www.hsf.org.za/focus34/focus34myburgh.html (accessed 2013-03-23).

17 Cunningham Theories of Democracy: a critical introduction (2002); Blaug &Schwarzmantel (eds) Democracy: A reader (2000).


derived from and linked to the political and historical developmentswithin each society.18

3 Democratic Schools in South Africa?

To many the phrase “democratic school” is an oxymoron. This might bebecause traditional school and classroom practise epitomisedauthoritarian power relations and undemocratic cultures. However, withthe rise and ultimate ascendency of liberal democracy during theTwentieth century came a growing realisation and new awareness thatdemocracy and education are intertwined and that schools should alsobe democratic institutions.19 One traditional role of education is totransmit to new generations a continuing image of the community.Education is the culture, which each generation purposely transfers tothose who are to be their successors.20 Citizens in a democracy,especially a young developing democracy, do not simply arrive atpolitical maturity and stand ready, willing and able to run its institutions,they have to be trained and educated to acquire the mindset, philosophy,knowledge and skills that are essential for a functional and substantivedemocracy.21 In a democracy, the whole population must acquire a setof political and educational competencies that enable them to value andexercise their fundamental rights and to practice the commitments thatgo with it.22 Schools are microcosms of society and accordingly thenature and practice of democracy in schools must be congruent with theschooling that citizens receive; otherwise, the educative force of the realenvironment would counteract the effects of early schooling.23

Dewey emphasised that schools are not only needed for educationalbut also for political reasons, because on the school, more than upon anyother institution, will depend the quality and nature of the citizenship ofthe future.24 After all, any political system shapes education andconversely education unquestionably determines the type of politicalsystem that a society will have.25 In this regard, undemocratic featuresin society are reflected in the education system, and undemocraticpractices in the education system and schools eventually becomeimbedded in the culture and ethos of a nation and society.26 By the same

18 Dieltiens Democracy in education or education for democracy: The limits ofparticipation in South African school governance (2000) (MEd dissertationUniversity of the Witwatersrand) 44.

19 Carr & Hartnett Education and the struggle for democracy (1996) 20-26.20 Parry & Moran Democracy and democratization (1994) 48.21 Aspin “The Conception of Democracy: A Philosophy for Democratic

Education” (1995) (in Creating and Managing the Democratic School edsChapman, Froumin & Aspin)

22 Parry et al.23 Ibid.24 Dewey op cit.25 Dieltiens 5.26 Smit A Model for Improving Democratic School Governance in South Africa

(2008) (PhD thesis North-West University Potchefstroom) 438.

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logic, it is also true that democratic practices and teaching in schoolsleave indelible imprints on the youth that will eventually find expressionin the life of a nation.

Since the late 1970s most developed liberal democracies haveembraced participatory theories of democracy thus extendingdemocratic principles from state institutions into all social spheres andinstitutions. Participatory democracy means that individuals orinstitutions should be given the opportunity to take part in the making ofdecisions that affect them. There are multiplicitous modes ofparticipation including voting, campaigning, group activity, contactingrepresentatives and officials, protesting, attending meetings, petitioning,fund-raising, canvassing and boycotting.27 Participatory democratsemphasise that more participation leads to increased effectiveness28 andthat participation educates citizens and stakeholders to transform theirinterests for the common good.29 Participatory democrats30 haveproposed ways to democratise workplaces, the family, media,neighbourhoods, universities, schools, and decision-making on humanrelations to the natural environment. Therefore, participative anddeliberative democracy should ideally be extended to schools,classrooms and various other interactive or social relationships such asmanagement, committee, union and parent meetings.

4 Democratic Features in the SA Schools Act

In keeping with the times the South African Schools Act31 (SASA) includesparticipatory democracy features in terms whereof some state authorityis devolved to local school communities known as School GoverningBodies (SGBs).32 The reforms after 1994 unified the previouslyfragmented education system into one national system. Woolman andFleisch33 aver that SGBs operate as a fourth tier of government by virtueof the fundamental administrative, managerial and “political” functionsthat they undertake. As forums, SGBs have the makings of a great andunique South African democratic tradition.

The Constitutional Court affirmed the democratic design of SASA inthe matter of Head of Department, Mpumalanga Education Department vErmelo High School by stating:

27 Parry & Moyser “More Participation, More Democracy?” (1994) (In Definingand Measuring Democracy ed Beetham) 46.

28 Barber Strong Democracy: Participatory Politics for a New Age (1984) 150.29 Pateman Participation and Democratic Theory (1970) 12. 30 Pateman; Held Models of Democracy (1987); Gould Rethinking democracy:

Freedom and Social Co-operation in Politics, Economy and Society (1988). 31 84 of 1996.32 Squelch The establishment of new democratic school governing bodies: co-

operation or coercion (1998) 44-45.33 Woolman & Fleisch The Constitution in the classroom – Law and Education in

South Africa 1994-2008 (2009) 166.


A governing body is democratically composed and is intended to function ina democratic manner. Its primary function is to look after the interest of theschool and its learners. It is meant to be a beacon of grassroots democracy inthe local affairs of the school. Ordinarily, the representatives of parents oflearners and of the local community are better qualified to determine themedium best suited to impart education and all the formative, utilitarian andcultural goodness that comes with it.34

Elections of members of SGBs take place every three years at schoolsacross South Africa, which makes these elections as significant as thenational, provincial and local government elections.35 Every high schoolmust have a representative council of learners.36 Parents, learners,educators and school personnel may participate in the elections.37 Theseprovisions establish a form of representative democracy in schools.Democratic principles such as accountability, transparency andopenness are implied by the provisions of SASA that require auditing offinancial records,38 annual approval of the school’s budget,39 dueperformance of governing body functions40 and regular elections ofmembers of SGBs. The principles of participative and deliberativedemocracy are apparent from the provisions that require approval of thefinancial governance by an annual meeting of the parents41 andparticipation of interested stakeholders either as members of the SGB oras members of committees42 serving under the SGBs. Most wellfunctioning SGBs have committees that attend to matters such asfinances, learner discipline, marketing, infrastructure, academicstandards, culture, leadership, hostels, sport and parent liaison to namea few. Clearly therefore, SASA contains features of representative,participatory and direct democracy and is based on the underlyingdemocratic principles of administration in terms of democratic values,43

advancement of equity and redress44 and public participation.

Sections 2, 6 and 10A of SASA determine that fundamental rights mustbe advanced and protected in schools. These provisions accord withliberal democratic theory that emphasises the basic human rights ofevery individual. It is therefore important that every school, everyeducator, school leader, administrator and every learner should ascribeto democracy as a foundational value by practising respect andtolerance, by purposely advancing equality, and by participating anddeliberating in forums such as school governing bodies or learner

34 Head of Department, Mpumalanga Education Department v Ermelo High School2010 2 SA 415 (CC) parr 57, 79.

35 S 23 SASA.36 S 11(1) SASA.37 Ss 11(2); 23(2), (9), (10) SASA.38 Ss 42; 43 SASA.39 Ss 23; 24; 38(2); 39(1) SASA.40 Ss 20; 36; 37; 38 SASA.41 S 38 SASA.42 Ss 23; 24 SASA.43 S 20(8) SASA.44 Preamble; ss 20(8); 34(1) SASA.

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representative councils. If this does not occur, then it is unlikely that ahuman rights culture will be established in schools or that the schools andthe South African society will become mature democratic institutions.

5 The Rule of Law and School Rules

Section 1(a) of the Constitution determines that South Africa is aconstitutional democracy and that it is inter alia founded on the on thevalues of supremacy of the Constitution and the rule of law. Thesupremacy of the Constitution means that everybody, including the state,all government institutions, schools, educators, parents and learners aresubject to the Constitution. The fundamental assumption underlying therule of law is that a law must apply equally to all and not be arbitrary inthe scope of its application.45 Although section 1(a) affirms human rightsand freedoms, it must be remembered that every right has a correlativeduty and free societies run the risk of becoming anarchies whenindividual liberties give rise to general lawlessness and disrespect for therights of others. If a society (or a school) succumbs to violence orlawlessness, be it public or private, then it is an undemocratic society orinstitution. In addition, section 39(3) of the Constitution provides that:

[t]he Bill of Rights does not deny the existence of any other rights orfreedoms that are recognised or conferred by common law, customary law orlegislation, to the extent that they are consistent with the Bill.

This means that all the legal rules and principles of the South Africancommon law as well as all the legislation of the pre-constitutional eraremain valid and enforceable insofar as it is consistent with the Bill ofRights. Thus, the principles and rules of the South African legal systemremain intact and are not swept aside or replaced by the Constitution butmust be developed to “promote the spirit, purport and objects of the Billof Rights”.46

It is a gross misconception to regard democratic schools as placeswhere absolute, unmitigated freedom or lawlessness (anarchy) prevails.On the contrary, well-disciplined and orderly schools may well bedemocratic institutions, but do not of necessity imply rigid or autocraticsystems. People living in a democracy are not free to live lawlessly,because a democracy is constituted by the fact that all the people havecollectively agreed to abide by the established laws of a country and aresubject to the rule of law. In order for a democracy to succeed these lawsmust be adhered to and should be enforced in terms of the rule of law. Afeature of any democratic organisation or institution, such as a school, isthat the rule of law applies which implies that the legal rules andprinciples are adhered to. Democratic schools are therefore perdefinition orderly organisations where all learners, educators and

45 Cheadle, Davis & Haysom South African Constitutional Law The Bill of Rights(2006) 30-38.

46 S 39(2) SA Constitution.


stakeholders must adhere to the law of the land, as well as to legitimateschool and classroom rules that have been mutually agreed to by meansof a participative process.

The purpose of SASA is to provide a uniform system for theorganisation, governance and funding of schools and to establish adisciplined and purposeful school environment, dedicated to themaintenance and improvement of quality learning.47 The Constitutionenshrines the right to basic education48 which implicitly places aconstitutional duty on the state and every public school to provideeducation by ensuring a disciplined and orderly environment that isconducive to effective teaching and learning. One aspect of the right tobasic education includes the rights of learners and educators to learn andteach in a safe environment, free from all forms of violence. The systemof school governance enables SGBs to take specific regulatory and policymeasures to improve the safety and well-being at schools. Thesemeasures include, among others:

(a) To adopt a Code of Conduct (section 8 and section 20(1)(d)).(b) To conduct disciplinary hearings to suspend or recommend expulsionof ill-disciplined learners (section 9).(c) To determine the times of the school day (section 20(1)(f)).(d) To administer and control the school’s property, buildings and groundswhich are occupied by the school (section 20(1)(g).(e) To recommend the appointment of educators at a school to the Head ofDepartment (section 20(i).(f) To recommend the appointment of non-educator staff at the school tothe Head of Department (section 20(j)).

Although these measures do not, at first glance, seem to address schooldiscipline and safety directly, each these measures contribute to thecreation of an orderly, secure and respectful school culture andenvironment. Also, properly designed rules and policies can go a longway towards establishing safe schools.49 Well cared for school facilities,clean and hygienic ablution facilities, functional equipment, well-maintained furniture and competent personnel create an atmospherewhich is conducive to learning and instils a sense of security. It is well-known that unkempt facilities and poorly maintained propertyencourage vandalism, graffiti and petty forms of misconduct such asmessing with water or littering, simply because it is more difficult to

47 Long title SASA: “To provide for a uniform system for the organisation,governance and funding of schools; to amend and repeal certain lawsrelating to schools; and to provide for matters connected therewith”. S 8(2)SASA provides that a school’s code of conduct “must be aimed atestablishing a disciplined and purposeful school environment, dedicated tothe improvement and maintenance of the quality of the learning process”.

48 S 29(1)(a) SA Constitution: “Everyone has the right to a basic education,including adult basic education …”.

49 Oosthuizen A practical Guide to Learner Discipline (2008) 4.

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identify and punish the culprit(s).50 There is also a direct correlationbetween the perpetration of petty misconduct and the prevalence ofserious misconduct. Programmes and measures to clean up andmaintain school environments have led to the reduction of both pettyand serious forms of ill-discipline.51

Yet, despite these legislative powers some forms of misconduct suchas freedom of expression and serious misconduct by learners (eg alcoholor illegal drug abuse, violence and assault, theft, dishonesty) have beenparticularly difficult for several schools to deal with in view of theconstitutionally protected human rights. The manner in which the courtshave adjudicated these cases of learner misconduct will be considered inthe following section.

6 Upholding Learner Discipline in Schools – Adjudication by the Courts

6 1 Freedom of Expression and School Discipline

Section 16(1) of the Constitution provides that:

[e]veryone has the right to freedom of expression, which includes freedom ofthe press and other media, freedom to receive or impart information or ideas,freedom of artistic creativity; and academic freedom and freedom ofscientific research.

However, section 16(2) of the Constitution contains internal limitationswhich demarcate the extent of constitutional free expression andprohibits “propaganda for war; enticement of imminent violence;advocacy of hatred that is based on race, ethnicity, gender or religion,and that constitutes incitement to cause harm”.

South African courts have inter alia been called on to apply theconstitutional standards to determine the limits of freedom of expressionin the education or school context concerning physical symbols(Antonie,52 Pillay)53 personal expression (Williams),54 publication ofuntrue statements in the media (Hamata),55 student protests (Ngubo)56

50 Wilson & Kelling “Broken Windows” (1997) (in Critical Issues in Policing:Contemporary Readings eds Dunham & Alpert); see also Wagers BrokenWindows Policing: The LAPD experience (2008) (PhD thesis State Universityof New Jersey). ‘Broken windows’ policing has been credited with thehistoric successes in crime reduction in New York, Los Angeles and schoolsin America.

51 Ibid.52 Antonie v Governing Body, the Settlers High School and Head, Western Cape

Education Department 2000 4 SA 738 (WC).53 MEC for Education, KwaZulu-Natal v Pillay 2008 1 SA 474 (CC).54 Western Cape Residents’ Association obo Williams v Parow High School 2006 3

SA 542 (C).55 Hamata v Chairperson, Peninsula Technikon 2000 4 SA 621 (C)56 Acting Superintendent-General of KwaZulu-Natal v Ngubo 1996 3 BCLR


and student-generated electronic cyber expression created outside theschool setting but having an effect on school discipline (Le Roux).57

In Western Cape Residents’ Association obo Williams v Parow HighSchool58 the parents of a Grade 12 girl, B, applied for an urgent interdictto compel the school to allow her to attend the matric farewell function.The school had refused Williams permission as a result of her continuedill-discipline during the course of the year. In casu there was no statutoryprovision or common law rule that granted the learner a right to attendthe matric farewell function. In determining whether a rule should bedeveloped to give effect to the Constitution, the court considered thearguments that the learner’s dignity, equality and freedom of expressionhad been infringed by the school’s refusal. However, the Court found thatthe attendance of a matric farewell function was a social activity and, assuch, was a privilege and not an enforceable right. Also, the courtconsidered the interests of the school, the other learners and theapplicant and determined on balance that:

Two of the important lessons that a school must teach its learners arediscipline and respect for authority. The granting of privilege as a reward forgood behaviour is one tool that may be used to teach such lessons. Thewithholding of such privilege can therefore not be claimed as an infringementof a right to equality or to dignity. Indeed, the granting of the privilege in theabsence of its having been earned may well constitute an infringement on therights to equality and dignity of those who have merited the privilege. Theright to freedom of expression, of course, does not equate to a right to be ill-disciplined or rude. The system of rewards for good behaviour permeates allwalks of life and to learn the system at an early age can only benefit thelearner later on in his or her life. I see nothing of constitutional concern in theuse of such a system in schools.59

The court supported the role of the school to educate the learner towardsproper behaviour and therefore a learner’s wish to express herself at amatric farewell dance was justifiable limited by the school’s obligation tomaintain order and discipline and to educate all learners.

In Antonie v Governing Body, the Settlers High School and Head, WesternCape Education Department60 the School Governing Body suspended alearner from school for wearing dreadlocks in contravention of theschool’s uniform dress code. The student, Antonie, was a Rastafarian andwore dreadlocks as part of her religious practice. The school could notshow that the right to basic education or any other fundamental right interms of the Bill of Rights had been infringed, because the learner’sdreadlocks had not caused a substantial disruption of school discipline

56 369 (N).57 Le Roux v Dey (Freedom of Expression Institute & Restorative Justice Centre as

amici curiae) JOL 27031 (CC) (2011).58 Western Cape Residents’ Association obo Williams v Parow High School 544.59 Ibid 545B-C.60 Antonie v Governing Body, the Settlers High School and Head, Western Cape

Education Department 2000 4 SA 738 (WC).

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and did not prevent others from receiving education. Van Zyl J held thatthe infringement of the school’s uniform dress code was not a seriousmisconduct and did not warrant suspension. In a similar matter of MECfor Education, KwaZulu-Natal v Pillay, the Durban Girls High Schoolwanted to prohibit the learner from wearing a gold nose-stud to schoolas its contravened the school’s uniform dress code. Although the schoolwas concerned that the conduct of Pillay would create a precedent andincite other girls to follow the fashion trends of piercing their noses, theschool could not present any evidence to show that Pillay’s conduct hadnegatively affected the discipline of others. The Constitutional Courtupheld the right of Pillay to freedom of expression in keeping with herSouth Indian family traditions and culture.61 Yet, Langa CJ (for aunanimous court) reiterated that this case was not about theconstitutionality of school uniforms and emphasised that schooluniforms served admirable purposes. Therefore, although the courtordered the schools to grant an exemption from the provisions of itsdress code as it was not regarded as a factor that would negatively affectthe discipline of other learners, the Constitutional Court was byimplication still mindful of maintaining school discipline.

The matter of Le Roux v Dey62 involved the harmful abuse of freedomof expression when Le Roux created a computer image at his home inwhich the faces of the principals and deputy principal of his high schoolwere super-imposed on an image of two naked gay bodybuilders sittingin a sexually suggestive posture. The image was circulated it to manyother learners and eventually placed on the school’s notice board. TheConstitutional Court dismissed the learners’ defence that it was done injest as a school boy prank. The Court rejected the contention that thefreedom of expression should be allowed and held that the manipulatedcomputer image was insulting, offensive or defamatory. The learnerswere ordered to apologise and to pay compensation to the plaintiff.

These decisions affirm that the courts have interpreted theconstitutional right to freedom of expression in favour of maintaininglearner discipline at schools.

6 2 Serious Misconduct and Expulsion of Learners

In instances of serious misconduct, SASA provides in section 9(1)(a) thatthe governing body of a public school may, after a fair hearing, suspenda learner as a corrective measure for a maximum of one week (fiveschool days). As an alternative, section 9(1)(b) determines that agoverning body may suspend a learner with the recommendation ofexpulsion from the school, pending the decision of the head of theprovincial department of education. However, schools have at timesstruggled to expel ill-disciplined learners because of a reluctance on the

61 Western Cape Residents’ Association obo Williams v Parow High School 2006 3SA 542 (C).

62 Le Roux v Dey.


part of the provincial education Heads of Department (HoDs) to affirm arecommendation of expulsion. It seems that the education authoritieshave not come to terms with the democratic requirement that the rule oflaw should be maintained and that schools should be supported in theireffort to “establish a disciplined and purposeful school environment”.63

A case in point is the matter of Maritzburg College v Dlamini NO64

where three learners at the school were involved in an incident in whichthey had consumed alcohol and had smashed a window of a hired bus.A bottle of brandy was discovered in one learner's kitbag. A proper andfair disciplinary hearing was held and the three learners were foundguilty of serious misconduct involving use of alcohol and vandalism. Thegoverning body suspended the learners and recommended expulsion tothe HoD. The HoD of KwaZulu-Natal neglected to decide the matter for21 months. When court action by the school was imminent the HoDdecided that it was unlawful to suspend learners pending his decision.The court held that the school’s action was lawful and that suspensionpending final decision by the HoD was correct. The High Court orderedthe expulsion of the learners from the school and therefore affirmed thatdiscipline should be upheld in schools.

In Phillips v Manser65 the court confirmed the legality of schoolgoverning body’s decision to suspend a learner from attending the schoolfor serious misconduct pending a decision by the HoD to expel thelearner. The learner was found guilty of several instances of seriousmisconduct which inter alia included assault of another learner,dishonestly forging letters, writing graffiti on school furniture andinhaling chloroform in the science laboratory. The learner, Phillips,applied to court to review the governing body’s decision and contendedthat his right to basic education in terms of section 29(1) of theConstitution would be infringed. The court held that the fundamentalright to basic education applies only for the duration of a learner’scompulsory school age, ie when a learner becomes 15 years old orfinishes grade 9, whichever is the first to occur. It is the duty of theprovincial HoD to make other arrangements to accommodate expelledlearners. Phillips also contended that the school did not have a code ofconduct and that the HoD failed to timeously confirm the expulsionwithin 14 days of the governing body’s recommendation. Kroon J foundin favour of the school and held that the procedure was fair and thesubstantive decision was just and therefore the HoD was obliged toconfirm the expulsion. The court held that the HoD has a limiteddiscretion to decline the recommendation to expel an ill-disciplinedlearner and affirmed that the right to basic education lasts until a learnerreaches the age of 15 years or attains grade 9, whichever occurs first.Again, this decision by the court affirms that the constitutional right tobasic education is limited if learners commit serious misconduct.

63 Long title SASA.64 Maritzburg College v Dlamini NO [2005] JOL 15075 (N).65 Phillips v Manser [1999] 1 All SA 198 (SE).

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In Pearson High School v Head of the Education Department Eastern CapeProvince66 the school launched and urgent application for review andsetting aside of the HoD’s decision that a learner of the school may notbe expelled. The HoD required of the school to assist the learner withguidance and counseling and more “fairness and compassion”. During afair hearing the learner had been found guilty by the disciplinarycommittee of inter alia purchasing, possessing, smoking and secretingdagga.67 The court set the HoD’s decision aside and ordered theexpulsion of the learner.

In the matter of George Randell Primary School v The Member of theExecutive Council, Department of Education, Eastern Cape Province68 theHoD of the Eastern Cape, ignored a recommendation by the SGB to expela learner. The school sought the review of the HoD’s decision not to expelan ill-disciplined learner. The 13 year old learner had been found guiltyby the governing body’s disciplinary committee of serious misconductincluding frequent assault of boys and girls, sexual molestation of girls,threats and bad language towards teachers. The parents of the learnerwere reluctant to accept any responsibility for the upbringing of theirchild. The HoD initially gave no reasons for his decision and after manyprotracted delays eventually averred that the disciplinary procedure wasunfair and that psychological counselling should be provided for thelearner. The school contested these reasons as factually inconsistent withthe findings and thus unreasonable. The matter became moot when thelearner did not renew his registration for the following academic year atthe school. No finding was made on the merits, but the court awardedcosts at party and party scale (ie not punitive costs) against the Memberof the Executive Council.

In Tshona v Victoria Girls High School,69 the learner had a previousrecord of misconduct and had previously received a suspendedexpulsion. Thereafter the learner behaved in an ill-disciplined manneragain. A notice to attend the disciplinary hearing was received and signedfor by the learner and was sent to her parents. Neither attended thehearing. The disciplinary committee continued in their absence andheard evidence on the misconduct. The learner was found guilty in herabsence and was expelled from the hostel. In an urgent application tocourt the learner’s lawyer argued that section 9(1) and (2) of SASArequired the HoD’s approval of the expulsion decision from hostels. Inother words, it was argued that expulsion from a school should beunderstood to include expulsion from a hostel. The court rejected thisargument and held that a learner’s right to attend a school and receivebasic education is not infringed by expulsion from a hostel. The court

66 Pearson High School v Head of the Department Eastern Cape Province [1999]JOL 5517 (Ck)

67 Colloquial term for marijuana.68 George Randell Primary School v The Member of the Executive Council,

Department of Education, Eastern Cape Province [2010] JOL 26363 (ECB).69 Tshona v Principal, Victoria Girls High School 2007 5 SA 66 (E).


awarded a punitive cost order (de bonis propriis) against the learner infavour of the school.

These cases confirm that the courts have consistently interpreted theConstitution and legislation as supportive of the maintenance of schooldiscipline.

6 3 Administrative Justice and Fair Process – Courts Defer to Schools

The Constitution also promotes rational decision-making by the state andits functionaries as opposed to arbitrary exercise of public power. Theconstitutional provisions are designed to ensure openness(transparency), fairness, accountability and legitimate decision-makingin a democracy. The High Court has jurisdiction to review administrativeaction and the Constitutional Court is the final court to adjudicateconstitutional matters. According to section 33 of the Constitutioneveryone has the right to administrative justice:

33. Administrative justice.(1) Everyone has the right to administrative action that is lawful,reasonable and procedurally fair.(2) Everyone whose rights have been adversely affected by administrativeaction has the right to be given written reasons.(3) National legislation must be enacted to give effect to these rights …

Reasonableness in terms of section 33(1) implies a decision that is“structured” in a rational fashion.70 This means that the decision must besupported by the evidence and information before the administrator andthe reasons given for it. Reasonableness also implies reasonable effects,also known as proportionality.71 The principle of ensuring fair procedure(“due process”) and substantively correct decisions is illustrated byseveral cases involving ill-disciplined learners.

In the matter of Van Biljon v Crawford,72 a learner was dishonestduring an examination and illegally used “crib notes”. During an informalhearing or enquiry that was held in the principal’s office, the learneradmitted the misconduct. As punishment the learner was demoted andlost his prefect badge. Thereafter the learner contested the proceduralfairness of the informal hearing and denied guilt in the matter. It wasargued that the hearing had not complied with the Department’sguidelines for a fair disciplinary hearing. The court upheld the precedentset in Shidiak v Union Government,73 which provides that if an official(such as the principal in casu) is charged with a duty and exercises hisdiscretionary competency by applying his mind and deciding in goodfaith, ie bona fide not mala fide, then the court is not entitled to replace

70 Hoexter, Lyster & Currie (ed) The New Constitutional and Administrative LawVol 2 (2002) 181.

71 Ibid.72 Van Biljon v Crawford unreported case 475/2007 (EC). 73 Shidiak v Union Government (Minister of the Interior) 1912 AD 642.

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the official’s decision by its own. The court also found that the procedurefollowed during the informal hearing did not have to comply strictly withthe guidelines for section 9 of SASA, because the punishment did notinvolve suspension or expulsion from a school. Therefore, Van Biljonconfirms that as long as it is procedurally fair and the decision issubstantively just, then an informal hearing may be held in respect ofschool matters that will not lead to suspension or expulsion. The courtwill defer to the principals if they exercise their discretionarycompetencies reasonably and in good faith.

In Governing Body, Tafelberg School v Head, Western Cape EducationDepartment74 the learner concerned, who was then a 14-year-old boy,admitted to, and was duly found guilty by the school of the theft of acomputer hard drive from the school. The governing body recommendedexpulsion of the learner, but the HoD decided against expulsion. Itappeared that the HoD had based his decision to re-admit the learner onseveral written submissions made by the learner’s parents and that theschool governing body had not been provided with copies or afforded anopportunity to respond to the parents’ representations. It was contendedon behalf of the school that the procedure adopted by the HoD was unfairand in breach of the tenets of natural justice and that his decisionconsequently had to be set aside. The court held that the maintenance ofproper discipline amongst a school’s learners was of fundamentalimportance to those in authority at any decent school and, in particular,to its governing body. This was reflected in section 9(1) of SASA, whichclothed the governing body of a school with powers calculated to enableit to enforce school discipline. Thring J found that the HoD’s decision hadhad a materially adverse effect on the school governing body’s interestsin maintaining proper discipline. The court decided not to simplysubstitute its own decision for that of the person whose function it wasto make that decision (in this case the HoD), especially if it wasdiscretionary in nature. Accordingly, the decision of the HoD was setaside and the matter referred back to him so that he could properlyreconsider his decision by taking the submissions of the school governingbody into account.

The outcome of these cases affirm that the requirements of proceduralfairness in maintaining learner discipline in schools accords with thedemocratic principles of openness and the common law rules of naturaljustice. However, Maritzburg College, Pearson and George Randellillustrate the very unsatisfactory results for schools that were obliged toapproach the courts for relief because the HoD refused expulsion of ill-disciplined learners for spurious reasons. Similar situations occur all toofrequently in practice, while most schools do not have the heart or meansto pursue litigation. This discourages educators and school leaders to takeeffective steps to remedy ill-discipline among learners and is one of thecauses of poor discipline in schools.

74 Governing Body, Tafelberg School v Head, Western Cape Education Department2000 1 SA 1209 (C)


7 Limitation of Rights

The general limitation clause and other limitation provisions in the Bill ofRights are further confirmation that democracy is compatible with themaintenance of learner discipline in schools. A democratic society shouldalways be subject to the rule of law otherwise the powerful tend to abusetheir power (political/administrative, physical, cultural or financial) to thedetriment of the common good. For this reason it is essential thatindividual rights and liberties may and should be limited wherenecessary without diminishing its core essence. Compliance with the ruleof law and requirements of legality is a pre-requisite to any litigation andis in the long term best interest of the children and people in the SouthAfrica.75 Although the Constitution is supreme, section 7(3) affirms thatthe fundamental human rights are not absolute and are subject tolimitations or restrictions in terms of section 36 or elsewhere in the Billof Rights. In the matter of De Reuck v Director of Public Prosecution76

Epstein J linked the limitation of rights to the balancing process bystating:

I reiterate that the rights contained in the Bill of Rights are not absolute.Rights have to be exercised with due regard and respect for the rights ofothers. Organised society can operate only on the basis of rights beingexercised harmoniously with the rights of others. Of course, the rightsexercised by an individual may come into conflict with the rights exercised byanother and, where rights come into conflict, a balancing process is required.

The boundaries of human rights are set by the rights of others and by thelegitimate needs of society.77 Generally, the legitimate needs of societythat justify the imposition of restrictions on human rights are: publicorder, safety, health, morals and democratic values. The nature andpractice of law requires continuous balancing of rights and values. It isthe particular domain of the courts to strike a balance between the claimsand duties, liberties and vulnerabilities, entitlements and liabilities ofparties involved in a legal dispute. However, this does not mean thatrights can be limited for any reason or by any societal rule. All rights,albeit fundamental human rights or non-fundamental rights, may belimited in accordance with the law. The courts have the judicial authorityto adjudicate whether the limitations or infringements of rights are inaccordance with the law. Fundamental rights may be limited in thefollowing ways:

(a) Limitation in terms of the general limitation provision, section 36 of theConstitution.

75 The Governing Body of Mikro Primary School v Western Cape Minister ofEducation case 332/2005 (WC) 50: “It is difficult to imagine how it could everbe in the best interests of children, in the long term, to grow up in a countrywhere the state and its organs and functionaries have been elevated to aposition where they can regard themselves as being above the law, becausethe rule of law has been abrogated as far as they are concerned”.

76 De Reuck v Director of Public Prosecution 2004 1 SA 406 (CC) 89B.77 Currie, De Waal & Erasmus The Bill of Rights Handbook (2006) 144.

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(b) Definitional demarcation of a right.(c) Specific limitations of a right.(d) Suspension of rights during a state of emergency in terms of section 37of the Constitution.

The general rule is the protection of an individual’s right or freedom; thelimitation is the exception.78 Usually, no matter how important acollective goal is, it cannot be pursued in a manner which violatesindividual rights. Accordingly, the limitation clause in the Bill of Rights,section 36,79 provides a mechanism in terms whereof individual rightsmust by occasion give way to social concerns of overridingimportance.80 Woolman avers that the general limitation provision in theBill of Rights is probably the most important section in theConstitution;81 not because the fundamental rights are unimportant, butbecause the general limitation provision applies to and regulates all casesthat involve conflicting fundamental rights. Woolman describes thisprocess as a “cost-benefit analyses” in terms whereof the cost andbenefits of the affected parties must be weighed against each other tostrike an appropriate balance.82 In other words, the balancing of rightswould require that the equilibrium is re-established by bringing equallyimportant rights to an even keel.

The limitations analysis requires that the least restrictive means oflimiting fundamental rights must be favoured and applied. Ifpunishments for infringement of school rules can be made less restrictiveand still achieve the same objective, then it should be done. For instance,if a learner has committed misconduct such as disrupting a class byboisterous behaviour, then the learner can be disciplined without havingto be suspended from school. The learner’s right to basic education willin so doing be brought into balance (equilibrium) with the school’s rightto maintain discipline. Neither the school not the learner’s rights arelimited in their entirety, but the extent of the right of the learner isadjusted.

School principals responsible for the professional management,governing bodies responsible for governance of schools and educatorsresponsible for teaching and classroom management, can apply the

78 Ibid.79 S 36 Constitution – Limitation of rights

(1) The rights in the Bill of Rights may be limited only in terms of law ofgeneral application to the extent that the limitation is reasonable andjustifiable in an open and democratic society based on human dignity,equality and freedom, taking into account all relevant factors, including–(a) the nature of the right;(b) the importance of the purpose of the limitation;(c) the nature and extent of the limitation;(d) the relation between the limitation and its purpose; and(e) less restrictive means to achieve the purpose.

80 Currie et al 145.81 Woolman “Limitation and suspension” (1996) 60 (in Constitutional Law of

South Africa eds Chaskalson, Kentridge, Klaaren, Marcus, Spitz & Woolman).82 S v Makwanyane 1995 6 BCLR 665 (CC).


section 36 balancing process by establishing the proportional weight ofconflicting rights in a variety of situations. At times it will be required ofeducators to make snap decisions in a classroom concerning suchconflicting rights. It is understandable that such “spur of the moment”decisions will not always be as accurate as a judgment of a court, becausethe latter has the convenience of the lengthy legal process, copious legalargument and time to reflect and consider the issues. Nevertheless, it isnecessary that educators should practice and become au fait with theprocess of balancing conflicting rights in classroom situations. This willenable educators to become more assertive in maintaining discipline.Not only will the consistent demonstration of the balancing processcontribute to the learners’ understanding of their fundamental rights andthe limitations thereof, but the learners will also be empowered with lifeskills to manage conflict in accordance with constitutional principles. Inthe long run, it will be to the distinct advantage of the South Africansociety as a whole if a culture of respect for fundamental rights and theconstitutional process of balancing rights is taught in schools as part ofthe socialisation function of education.

9 Discussion: Establishing Disciplined and Democratic School Cultures

Education is probably the most important instrument for cultivating ahuman rights culture and establishing a consolidated and substantivedemocracy. Learners have to be prepared for their future responsibilitiesas citizens of a democratic society. As learners are not born with anunderstanding of the principles of democracy, public schools function asthe nurseries of democracy.83 Democratic values and principles cannotsuccessfully be affirmed and transmitted to learners if an educationsystem is bureaucratic or displays autocratic values and principles. If aschool is run by autocrats, it is not likely to produce democraticallyminded citizens. It follows that one cannot achieve a good democracywithout a good education. Most schools have traditionally functioned andcontinue to function as semi-autocratic organisations. Yet,democratisation of schools requires an inculcation of knowledge, valuesand attitudes into substantive democratic practice by means ofeducation.84 Therefore, the philosophy of education in a democracyrequires that the education system should be one in which schools arethemselves organised democratically to promote a mode of associatedliving embedded in a culture of social relationships and social intelligencewhich is the prerequisite to individual freedom and growth.85

This implies that the nature and practice of democracy in societalinstitutions, such as schools, must be congruent with the education that

83 Steyn, Du Plessis & De Klerk Education for democracy (1999). 84 Chapman, Froumin & Aspin (eds) Creating and managing the democratic

school (1999) 58.85 Ibid.

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citizens receive; otherwise, the educative force of the real environmentwould counteract the effects of early schooling.86

It is a misconception to regard democratic schools as places whereunmitigated freedom or anarchy prevails. On the contrary, orderly andwell-disciplined schools can function democratically. Any democraticorganisation or institution, such as a school, should per definition beorderly organisations where all the learners, educators and stakeholdersmust adhere to legitimate school and classroom rules that have beenmutually agreed to by means of a participative process and to the law ofthe land.

The aim of education in a democracy is to gain knowledge useful forreal life, to build moral character and the growth of the whole person:intellectually, personally, socially and professionally.87 Yet, schools mustunder no circumstances be politicised and the purpose of education iscertainly not to practise party politics or to promote sectarian politicalinterests at schools. Democracy is not a continuous struggle for politicalpower, but should be a condition of a society that places value on theresolution of problems of communal life through collective deliberationand a shared concern for the common good.88

Therefore, democratic values and attitudes such as respect for humandignity, the achievement of equality, the advancement of freedoms,tolerance, responsiveness and accountability cannot be instilled bymerely conferring political rights to citizens or by establishing formaldemocratic institutions, but also need to be educated and demonstratedby example and application in the education system and schools. Theusual characteristics of democratic schools are adequate stakeholderparticipation; unselfish civic-minded attitudes; power neutrality;adherence to the law; fair procedures and just administration;accountability; openness and transparency; and the advancement ofhuman rights. All these characteristics imply that the conditions andenvironment in schools should be well ordered and disciplined.

10 Conclusion and Recommendations

The court decisions affirm that the constitutional standards andfundamental rights support the maintenance of learner discipline inschools. Also, SASA contains numerous provisions to enhance learnerdiscipline. Only the prohibition of corporal punishment at schools hashampered the maintenance of learner discipline to some extent.However, not only does the fundamental right to freedom and securityof person protect an individual against public violence by the state, but italso protects every person’s physical and psychological integrity againstprivate violence. Democratic schools should by definition be safe schools

86 Parry et al 48.87 Dewey op cit.88 Ibid.


where learners are able to learn in a disciplined and purposefulenvironment. In this regard, the nature and extent of poor discipline inmany South African schools is a grave cause for concern.

When not threatening school discipline, the South African courts haveruled in favour of upholding students’ rights to freedom of expression.However, when the exercise of free expression has been harmful topersons, educational institutions or individuals, or has substantivelyaffected school discipline, the courts have limited learners’ rights to freeexpression in order to protect the safety of persons, and the dignity ofindividuals or the discipline at schools. The Phillips decision has affirmedthat the right to basic education is not absolute and that learners whocommit serious misconduct may justifiably be expelled in order tomaintain an orderly and disciplined school environment.

The examples of the Tafelberg, Pearson, Maritzburg College and GeorgeRandell cases provide substantiation of the fact that provincialadministrators at times display attitudes averse or indifferent to thedemocratic principles of responsiveness, accountability andtransparency. This constrains participation by stakeholders in educationwhose rights or legitimate expectations are materially and adverselyaffected.

The present provisions of SASA place an unfair burden on schools that,in practice, have no other effective means of dealing with seriousmisconduct. A week’s suspension is ineffectual, because learners usuallyregard it as a holiday or welcome rest from school obligations. As a resultof administrative injustice and obstructionist attitudes of the educationauthorities schools struggle to expel learners. This undermines thedemocratic design of SASA and causes educators to feel disempoweredin the human rights environment. In order to address this shortcoming itis recommended that section 9 of SASA should be amended to allow forlengthy suspension of up to 180 school days (ie one school year). This willconvey a strong message of support for educators that may otherwiseconsider leaving the profession as a result of ill-discipline at schools.

In order to further the democratisation of schools in South Africa it isimperative that all available policy, regulatory and administrativemeasures should be implemented and that effective legal remediesshould be developed and extended to ensure the establishment of apurposeful learning environment.

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